Intellectual Property Law is a complex area of law and was formulated to protect owners of Intellectual Property and to ensure they had exclusive rights to the use of their property.
What is Intellectual Property
Intellectual Property (IP) is a broad term referring to creations of the mind or proprietary knowledge. It can come in many forms with some of the most common being; inventions, designs, methods, literary, artistic works and symbols, names and images used in commerce.
The basis behind the development of Intellectual Property Law is that products of the human intellect should be provided with the same rights and freedoms given in protection of physical property.
There are various different methods to protect your Intellectual Property in Australia and it can be sometimes difficult to determine which method best suits a particular type of Intellectual Property.
Types of Intellectual Property Protection
There are numerous different types of protection available for Intellectual Property in Australia.
This is to ensure that adequate protection is afforded over the vast forms of Intellectual Property that arise. Some protections automatically apply such as Copyright and Circuit Layout Rights whilst other protections need to be registered to be effective.
The key types of Intellectual Property protection are as follows:
A patent is a right that is granted for any device, substance, method or process that is new, inventive and useful.
A patent is legally enforceable and gives you the exclusive right to commercially exploit your invention for the life of the patent.
A standard patent provides long term protection and control over an invention for up to 20 years from the day you lodge your application.
A Trade Mark is a way of identifying the goods or services of a business and distinguishing them from that of other businesses. It gives the protected party the exclusive rights to use, license or sell the trade mark commercially.
Trade Marks can be for a letter, word, phrase, number, logo, shape, number, smell, picture or distinct aspect of packaging.
Once a Trade Mark is registered in Australia it is protected in all states and territories of Australia for 10 years. For protection internationally the trade mark would need to be registered in each country you are seeking protection in.
As a part of protecting the brand name it would also be important to register Business Names and Domain Names with the relevant authorities.
Copyright is one of the forms of Intellectual Property protection that do not require formal registration.
Copyright protects the expression of information or ideas in particular forms such as literary writings, music, images, broadcasts, sound recordings, moving images and computer programs.
Copyright protection is designed to ensure there is no unauthorised use of your creative works. Although Copyright protection is automatic under Australian law it can be recommended at times to still place copyright notices on works produced as a reminder to potential infringers.
Circuit layout rights
Circuit layout rights refer directly to the creation of unique and complex integrated circuits or computer chips which are used in computers, mobile phones and a vast array of other electronic devices.
Circuit layout rights are automatically protected and do not require any registration from the owner of the intellectual property.
This protection is to ensure the owner of the circuit layout rights has exclusive use of the property to copy, produce and sell the circuit layouts commercially.
A trade secret is proprietary knowledge and it is up to the holder to protect that knowledge.
Trade secrets are not a form of Intellectual Property protection that can be registered. The most common form of a trade secret is for a technique or device used by a company in manufacturing goods which is not known by the public or competitors.
As this protection is not registerable it is important to take other means to protect this Intellectual Property with precautions taken such as confidentiality agreements and non-compete agreements with those privy to the trade secret.
Registered designs are used to protect the use of the appearance of a product. The appearance of your product is often a defining feature that separates you from your competitors and is extremely important to protect. Registered designs can be used to protect the shape, pattern and style of your product that makes it unique in appearance and provide exclusive use to that design. Registering this design will allow you protection for up to 10 years from the date of registration.
Plant breeder’s rights
This is a niche form of Intellectual Property protection which is for the protection of new varieties of plants.
It provides the holder with exclusive commercial rights to the use of a new and unique plant breed that they have discovered or created. Protection can last up to 25 years depending on the type of plant being registered.
Why it is Important to Protect Intellectual Property
It is important to protect your Intellectual Property to ensure that you have exclusive rights to the commercial use of your Intellectual Property.
By having exclusive commercial rights to your Intellectual Property it allows you to protect its value by limiting who can use it and protect your reputation by not having others misusing your ideas commercially. This exclusivity allows you to benefit financially from the sole use of the Intellectual Property and in some forms license others to use the product or idea and get paid royalties or licensing fees.
By having proper protection in place it will allow you to stop infringers that attempt to make financial gain off of your Intellectual Property and will allow you to seek compensation for those that do use your Intellectual Property without proper permission.
It also allows you to stop infringing products from entering the country by approaching appropriate boarder and customs departments regarding infringing products.
By not having proper protection in place for your intellectual property it can have adverse financial affects to the success of your Intellectual Property.
How to Ensure Intellectual Property is Protected
The first step in ensuring your Intellectual Property is protected is to identify exactly what your Intellectual Property entails.
The second step is to ensure that until you have adequate protection in place, you keep the details confidential to ensure others do not use your idea for their own personal gain.
The third step is to develop a strategy for protecting your Intellectual Property based on the protection methods available.
The fourth step is to implement your strategy and put protection measures such as those discussed above in place regarding your Intellectual Property.
The fifth step is to monitor the market which your Intellectual Property falls within and keep an eye out for infringing products or ideas and take action where necessary.
Need Legal Advice?
If you have Intellectual Property that you need advice on how to protect and to assist in developing a strategy to protect it or if you already have protection in place and are concerned about others infringing on your Intellectual Property, we can help.